Dismissal threshold for sexual harassers

When an employee is guilty of sexual harassment, should there be zero tolerance or should there be a second chance?

By Jeffrey R. Smith

When an employee sexually harasses another worker in the workplace, it’s serious. Employers need to address such misconduct swiftly and firmly.

But how firmly? Obviously, the employer would want to ensure it doesn’t happen again, and it has to consider how the victim handles it. Harassment that includes unwanted touching on several occasions sounds like serious misconduct that is best solved by getting rid of the perpetrator — but that’s not always the case.

A mail room clerk for a public service employer in Ottawa developed a habit of engaging in sexual banter with the cleaning staff at the building where he worked. This habit evolved into a tendency to make advances on two of the female cleaners, including blowing them kisses and grabbing their buttocks. Though the women asked him to stop, he continued the behaviour for five years. The women didn’t complain to their employer because they were afraid of losing their jobs.

One of the women finally told the clerk to stop, showing him her fist and making it clear he was taking his behaviour too far. The clerk stopped bothering her but continued with the other female cleaner. One day, he encountered her in the elevator coming up from the basement and he tried to kiss her. She pushed him away and he grabbed her buttocks.

The cleaner had finally had enough and complained to her employer, who informed the clerk’s bosses. The clerk claimed the cleaner was a willing participant and tried to downplay the misconduct. He was fired for sexual harassment and lying about it, but an arbitrator reinstated him with a five-month suspension, finding the misconduct was serious but the employment relationship wasn’t irreparably damaged. Because he stopped harassing the other cleaner when she forcefully told him to stop, he was capable of getting the message and unlikely to offend again, said the arbitrator.

This is a case where an employee harassed another worker multiple times over years, had to know it was unwanted — as the cleaners had told him — and then tried to downplay it when confronted with his behaviour. Yet, according to an arbitrator, it wasn’t enough to warrant dismissal — though a five-month unpaid suspension is serious discipline.

Granted, he had an otherwise good employment record with no previous discipline, but he wasn’t a long-term employee, having worked with this employer for five years. But in this case, a no-tolerance policy didn’t hack it, and the employer had to give him another chance.

Termination is the “capital punishment” of employment, and it’s the harshest way an employer can deal with employee misconduct. Naturally, only very serious misconduct should warrant it and the employee’s previous record can play a role in the decision. But isn’t sexual harassment serious? There can be different levels of seriousness to harassment, but cornering someone who is alone, trying to kiss her and groping her seems fairly serious.

How much further the employee would have had to have gone to make his misconduct worthy of dismissal? What is the threshold for dismissal when it comes to sexual harassment in the workplace?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected] or visit www.employmentlawtoday.com for more information.

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